Com. v. Martz, J. ( 2015 )

J-S40022-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JENNIFER A. MARTZ, :
:
Appellant : No. 1768 WDA 2014
Appeal from the Judgment of Sentence September 23, 2014,
Court of Common Pleas, Butler County,
Criminal Division at No. CP-10-CR-0001356-2013
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED JULY 8, 2015
Jennifer A. Martz (“Martz”) appeals from the September 23, 2014
judgment of sentence entered by the Butler County Court of Common Pleas
following her convictions by a jury of theft by unlawful taking and receiving
stolen property and conviction by the trial court of criminal mischief, a
summary offense.1 Upon review, we affirm.
The trial court provided the following summary of the trial testimony:
The first witness presented by the Commonwealth
was Juli Royle. She testified to attending a wedding
reception at Donegal Grange on June 8, 2013. At
one point during the reception, Ms. Royal testified,
she went inside and saw [Martz] standing with her
arms crossed beside the gift or card box. No others
were inside except for the D.J. and some children.
Ms. Royal spoke to [Martz] and asked if she was
going to come outside with the other guests.
1
18 Pa.C.S.A. §§ 3921(a), 3925(a), 3304(a)(5). The trial court acquitted
Martz of disorderly conduct, 18 Pa.C.S.A. § 5503(a)(4).
*Retired Senior Judge assigned to the Superior Court.
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[Martz] stated that she was going to listen to music
for a little while. Ms. Royal testified that she had
used the restroom prior to the time [Martz] had
arrived. The toilets were functioning at that time.
Later, Ms. Royal observed a confrontation with
[Martz] that took place outside of the Donegal
Grange. During the confrontation, [Martz] “kept
trying to leave” though others present would not
permit her to do so until the police arrived or they
were permitted to check her to make sure she did
not have stolen money on her person.
The next witness presented by the
Commonwealth was Trooper Jason Frances[] of the
Pennsylvania State Police. He testified that on June
28, 2013, he was dispatched to a disturbance at the
Donegal Grange. Once he arrived there, Trooper
Frances observed [Martz] sitting on the ground near
a dumpster by the rear parking lot. Trooper Frances
exited his vehicle and placed [Martz] in his police
cruiser for her safety because there was a “large[,]
angry crowd” nearby. The crowd was angry, Trooper
Frances testified, because “they were accusing
[Martz] of stealing the cards, putting them in the
toilet, ripping up checks and taking the cash.” A
member of the crowd handed money to Trooper
Frances and indicated he retrieved it from [Martz].
[Martz] denied stealing the money and indicated it
came from a tax return and [a withdrawal from an]
ATM. Given the opportunity later to produce a bank
statement, Trooper Frances testified, [Martz]
[declined] to do so. The money handed over to
Trooper Frances consisted of fives, tens, twenties,
and a fifty[-]dollar bill totaling $475. After the
money was counted, it was returned to the victim[,
the groom]. Trooper Frances indicated that he
obtained the wedding cards that were found in the
toilet[, and the victim reported to him that the cards
contained money].
Next to testify was Gerald Scherer, the brother of
the groom. Mr. Scherer testified that [Martz] arrived
at the wedding reception with George McCray
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approximately two hours after it had started.
Shortly after arriving, Mr. Scherer testified, [Martz]
went inside while most of the guests were outside.
After it was discovered that the wedding gifts had
been stolen, Mr. Scherer testified, the group of
guests did not want anyone to leave because they
wanted to “[f]igure out what exactly was going on.”
He testified that it was discovered that [Martz] was
inside when the cards were stolen. He continued:
She was the only one in there, and we wanted
her to, my cousin said to me that if she goes in
the restroom and reveals herself, everything,
that she has nothing, she’s free to go because
she wanted to leave and I said okay. She
didn’t want to do that. So I said, well, we are
going to have to call the cops. Somebody
called the cops, and I followed her around[]
until the cops came. I followed her for
probably it was a while probably half hour,
forty-five minutes.
Mr. Scherer testified that [Martz] “[e]nded up at a
dumpster in the parking lot[,]” and:
She kind of had her hands on it and was kind
of saying like [“]I can’t believe you’d think it
was me[,”] and then just when somebody said
cops are coming over the hill, coming up the
hill, going to be here in a minute, I seen her
reach into her bra and pull out a wad of cash
just then I was right there two feet away. My
buddy was standing beside me, [“]there it is
let’s grab it,[”] we restrained her, got her on
the ground. I don’t know how many people it
took. She had a death grip on it. Pulled the
money from her hand, and they took a wad of
cash. The only denomination I seen folded on
top was a fifty.
Mr. Scherer indicated that [Martz] had been trying to
put the money in the dumpster.
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Nicole Scherer, the bride, was the next witness to
testify. She indicated that [Martz] arrived at the
reception sometime after everyone had finished
eating when most people were outside. At one point
Ms. Scherer went inside and observed [Martz] by the
gift table. According to Ms. Scherer, [Martz]
appeared to be “nervous” and “pacing[.]” Ms.
Scherer, at one point, saw [Martz] enter the
restroom. After leaving the restroom, [Martz]
returned to a position near the gift table. [Martz]
conversed briefly with Ms. Scherer, retrieved a cup
from the garbage that had been thrown away, and
went outside. Less than a minute after [Martz] went
outside, another guest approached Ms. Scherer and
indicated that the toilet in the bathroom would not
flush, that she had reached into the tank, and that
[wedding] cards and checks had been placed in the
tank. The guest handed the cards and checks to Ms.
Scherer, who went outside and found her husband.
…
The [d]efense called as its first witness George
McCray[, Martz’ boyfriend]. Mr. McCray testified that
in the days leading up to the wedding reception, he
withdrew several hundred dollars from ATM
machines and gave $400 to [Martz] in order to pay
[his property] taxes. According to Mr. McCray,
[Martz] had that money in her bra during the
reception.
[Martz] was the final witness to testify. She
denied stealing the money from the wedding [cards].
[She testified that the money in her bra belonged to
her and to Mr. McCray; that she brought it with her
to keep it safe; and that she was never given a
chance to explain to the guests that the money was
hers before they jumped on her and forcibly
removed it from her bra, not from her hand.]
Trial Court Opinion, 1/12/15, at 1-4 (record citations omitted).
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The jury and the trial court, respectively, convicted Martz of the
aforementioned crimes. On September 18, 2014, the trial court sentenced
Martz to time served to twelve months of incarceration with immediate
parole, followed by eighteen months of probation. Martz filed a timely post-
sentence motion challenging the weight and sufficiency of the evidence to
support her convictions. The trial court denied the motion on October 15,
2014.
Thereafter, Martz filed a timely notice of appeal and complied with the
trial court’s order for the filing of a concise statement of errors complained
of on appeal. She raises the following issue for our review: “Whether the
weight and sufficiency of the evidence presented by the Commonwealth is
enough to sustain the guilty verdict rendered for the offenses of theft by
unlawful taking and receiving stolen property?” Martz’ Brief at 9.
Although phrased as a single issue, Martz raises two separate
arguments on appeal. We begin by addressing her sufficiency claim. Martz
asserts that there was insufficient evidence to support her convictions of
theft by unlawful taking and receipt of stolen property because there was no
evidence that the destroyed wedding cards contained any money, nothing to
link Martz to the destroyed wedding cards, and nothing to establish that she
stole the money recovered from her person. Id. at 16-17. Rather, relying
on testimony presented in her defense, Martz states that the evidence
showed that the money belonged to her. Id. at 17. The trial court found
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that the evidence was sufficient to convict her of both charges. Trial Court
Opinion, 1/12/15, at 4-5. We agree.
Appellate review of a challenge to the sufficiency of the evidence is de
novo. Commonwealth v. Rushing, 99 A.3d 416, 420 (Pa. 2014). “[O]ur
scope of review is limited to considering the evidence of record, and all
reasonable inferences arising therefrom, viewed in the light most favorable
to the Commonwealth as the verdict winner.” Id. at 420-21. “The
Commonwealth may sustain its burden by means of wholly circumstantial
evidence.” Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014)
(citation and quotation omitted). “Further, we note that the entire trial
record is evaluated and all evidence received against the defendant is
considered, being cognizant that the trier of fact is free to believe all, part,
or none of the evidence.” Id. It is for the finder of fact to pass upon the
credibility of the witnesses and weight of the evidence presented.
Commonwealth v. Melvin, 103 A.3d 1, 40 (Pa. Super. 2014).
“A person is guilty of theft if he unlawfully takes, or exercises unlawful
control over, movable property of another with intent to deprive him
thereof.” 18 Pa.C.S.A. § 3921(a). “A person is guilty of theft if he
intentionally receives, retains, or disposes of movable property of another
knowing that it has been stolen, or believing that it has probably been
stolen, unless the property is received, retained, or disposed with intent to
restore it to the owner.” 18 Pa.C.S.A. § 3925(a).
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The jury heard evidence that upon arriving at the wedding reception,
Martz positioned herself near the card and gift table alone. N.T., 8/21/14, at
23, 44, 58. Martz remained there as individuals came in and out of the
reception hall. Id. at 23, 58, 62, 78. She was observed to be “nervous”
and was “pacing.” Id. at 62. Martz went to the ladies’ room, at which time
both toilets were functioning. Id. at 23, 66-67. Less than a minute after
Martz visited the restroom, one toilet was reportedly broken and a guest
found wedding cards and checks in the toilet tank. Id. at 65-66.
A wedding guest confronted Martz and she denied that she stole
anything and attempted to leave the reception. Id. at 24-25, 53. She
refused a guest’s request to “reveal[] herself” in the restroom to prove that
she did not steal anything. Id. at 44.
Martz ultimately positioned herself near a dumpster in the parking lot.
Id. at 45. Upon learning that the police were approaching, Martz removed a
large amount of money from her bra and attempted to “stash” the money in
the dumpster in a “sneaky” manner. Id. at 45, 54.
When the police arrived, a wedding guest gave Trooper Frances the
money obtained from Martz, which consisted of fifty-, twenty-, ten- and five-
dollar bills, totaling $475. Id. at 32. Martz and Mr. McCray testified that
they had obtained the money found on Martz’ person from various trips to
the ATM, id. at 87, 90, 107-09, but Trooper Frances testified that it was
“[v]ery rare” to get a fifty dollar bill from an ATM. Id. at 39. Trooper
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Frances testified that he offered for Martz to use a computer at the police
barracks to show him a copy of her bank statement indicating that the
money belonged to her, but she declined to do so. Id. at 122. Because the
cards were destroyed, Trooper Frances testified that he was unable to track
down the givers of the cards to determine how much money was inside of
the cards, but that he was made aware that there had been money inside of
the cards. Id. at 36.
Viewing the evidence presented in the light most favorable to the
Commonwealth, we conclude that the evidence sufficiently, albeit
circumstantially, supports a finding that Martz stole the cash inside of the
wedding cards, put it in her bra with the intent of depriving the victims of
the money, and attempted to hide the cards and checks in the toilet tank.
Therefore, we find no error in the jury’s decision to convict Martz of theft by
unlawful taking and receipt of stolen property.
We now turn to Martz’ challenge to the weight of the evidence, which
we review according to the following standard:
A claim alleging the verdict was against the weight of
the evidence is addressed to the discretion of the
trial court. Accordingly, an appellate court reviews
the exercise of the trial court’s discretion; it does not
answer for itself whether the verdict was against the
weight of the evidence. It is well settled that the
[jury] is free to believe all, part, or none of the
evidence and to determine the credibility of the
witnesses, and a new trial based on a weight of the
evidence claim is only warranted where the [jury’s]
verdict is so contrary to the evidence that it shocks
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one’s sense of justice. In determining whether this
standard has been met, appellate review is limited to
whether the trial judge’s discretion was properly
exercised, and relief will only be granted where the
facts and inferences of record disclose a palpable
abuse of discretion.
Commonwealth v. Tejada, 107 A.3d 788, 795-96 (Pa. Super. 2015)
(citation omitted).
Martz premises her weight claim on the Commonwealth’s presentation
of “testimony that was unreliable, tenuous and vague.” Martz’ Brief at 18.
She points to the absence of testimony concerning anyone observing her
take anything, bring anything with her to the bathroom, or any evidence
that money had been removed from the cards found in the toilet tank. Id.
at 18-19. According to Martz, the testimony presented was “pure
speculation … so lacking in substance, so incredible, and so contradictory
that it is of insufficient weight to support the verdict.” Id. at 19.
The trial court found that “[t]he jury’s verdict was not so contrary to
the evidence as to shock one’s sense of justice.” Trial Court Opinion,
1/12/15, at 5. The jury disbelieved Martz’ version of events and found
credible the Commonwealth’s witnesses’ portrayal of the events of the
evening, which, according to the trial court, support Martz’ convictions of
theft by unlawful taking and receiving stolen property. Id.
We find no abuse of discretion in the trial court’s conclusion. Although
Martz denied that she stole the money and presented evidence that she and
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her boyfriend had made several trips to the ATM in the days leading up to
the wedding, see N.T., 8/21/14, at 88-90, 105-07, the jury was free to
disregard that evidence and accept the testimony of the Commonwealth’s
witnesses as credible. See Tejada, 107 A.3d at 795-96. As such, no relief
is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2015
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